What are the different Sexual Harassment Laws in India

Women have been subjugated, discriminated against, and systematically oppressed throughout history. From the women's voting movement in the 1800s to modern-day feminism, movements that branch in all the spheres of life have certainly changed the social, political, and economic position of women over the years. Violence and sexually predatory behavior are used by men to further oppress and marginalize women not just in the personal sphere, but also in public spaces. The Indian Penal Code, 1860, had a list of laws dealing with crimes against women, like sections 294, 354, 370, 375, 499, 503, and 509 which range from public misbehavior to rape. Additionally, the IT Act and CrPC had provisions dealing with the same, yet there was a huge gap between what the legal system sought to achieve and the reality.

Sexual harassment law or strong laws for the protection of women in India emerged after a heinous incident, the Vishaka Case. It was a case that shook the country’s prevailing misogynistic and patriarchal atmosphere and gave birth to a nationwide discourse on violence against women in a free democratic India that already had laws to deal with it.

Let us now trace the changes that took place over the years:

1. Vishaka Case: In the landmark judgment of Vishaka v. State of Rajasthan, the Supreme Court issued guidelines for the Union to deal with cases of sexual harassment at workplace. After this judgment, every employer had to comply with the ‘Vishaka Guidelines’ that required them to provide a mechanism to redress grievances pertaining to workplace sexual harassment.

2. Nirbhaya Case: The 2012 gang rape caused a nationwide uproar against the rising crimes against women which were met with inadequate or no legal repercussion.  This was followed by establishment of Justice Verma Committee to observe and recommend changes in the present penal provisions. This was followed by the Criminal Amendment Act, 2013 which made substantial changes to the Indian Penal Code, 1860, Code of Criminal Procedure, 1973 and Indian Evidence Act, 1872, relating to rape cases. In the IPC, section 166, 354, 370, 375, and 376 were amended and new subsections were added. In CrPC, section 154, 164 and 197 were amended to keep pace with the amendments made in IPC. Similarly, in the Evidence Act, section 53, 114A and 146 were amended. Major amendments which were made by this act are; the definition of rape extends to not just peno-vaginal intercourse but the insertion of an object or any other body part into a woman’s vagina, urethra or anus, and oral sext too, increase in punishment of rape and definition of consent was provided.

The Act acknowledges the significant variety of sexual assaults that women increasingly are falling victim to, which is an obvious physical manifestation of gender-based discrimination. It also acknowledges that minor bodily integrity violations frequently escalate to more serious ones because such crimes usually go unreported due to the prevalent social stigma. Additionally, it aims to treat even the rarest of the rare cases and tries to address every legal logistical loophole. However, this act has been criticized for not incorporating many of the recommendations made by the Verma Committee.

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POSH Act: Even after 16 years of the release of Vishaka Guidelines there was no official action taken on it by the government, that is, till 2013. In 2013, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act (POSH Act) was enacted and it was the first legislation enacted to protect the women from being sexually harassed but the legislation was specified in the workplace.

Under section 2 and gives an inclusive definition stating that sexual harassment includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely:

1. physical contact and advances; or

2. a demand or request for a sexual favor; or

3. making sexually colored remarks; or

4. showing pornography; or

5. any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

The Act provides for the establishment of District-level Local Complaint Committees and also provides for the creation of local employee complaint committees to deal with allegations of sexual assault in the workplace. The Act also sets out the process for filing a lawsuit, as well as the method available for seeking justice.

Criminal Amendment Act, 2018:  POCSO or the Protection of Children from Sexual Offences Act, 2012 is a statute enacted to protect children from offenses such as sexual assault, sexual harassment, and pornography. It was created to include a child-friendly system in which the offenders could be sentenced for trial. The Act defines a child as being any person under the age of 18. Additionally, this act is gender-neutral and acknowledges the sexual violations against males unlike IPC.

A massive outrage following two separate gang rape cases of minor girls, one of an eight-year old in Kathua, J&K, and another one of a 16 year old in Unnao, Uttar Pradesh led to the enactment of Criminal Amendment Act, 2018. This Act made amendments to the IPC and POSCO Act, which enhanced the minimum and maximum punishment for rape of women and rape & gang rape of girls below the age of 12  and 16 years.

The objectification of women’s bodies is the biggest reason for the gender based violence which is so normalized in society today that it contributes to rape culture and further marginalization of women. Sexual harassment is not just an act of fulfilling sexual desires but is also an act of violence which is a showcase of male dominance and validation of the existing patriarchal and misogynistic social structure. The legal system has over the years evolved to create a more suitable justice-seeking forum which tries to incorporate the variety of issues faced by men and women, which itself is a testimony to the flexible yet rigid structure of our legal system, yet there are issues which need to be addressed and loopholes that require to be filled.  One of the biggest flaws is the absence of more gender-neutral laws like POSCO which cater to cases of men and the LGBTQ+ community. Other than that, moral policing, social stigma, and victim-blaming are few of the issues which act as hurdles in the path of getting justice.  The presence of statistics that suggest how many cases go unreported and how many victims are shunned into silence is a proof of how the legal system and society are unable to hold the criminals accountable and thus, it results in a huge jump in such cases every year with little to no relief.

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